AJIT KUMAR VERMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 21.8.1995 passed by Shri Sheo Bachan Yadav, Judicial Magistrate, Patna in Tr. No. 681/93/324/95 by which in exercise of his powers under section 319 of the Code he summoned the petitioner to face the trial for the offence under section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act').

(2.) FROM the application it appears that opposite party no. 2 Deojit Basu a partner of Ashok Transport Agency, filed a complaint petition before the Chief Judicial Magistrate, Patna against one Ashok Kumar Singh. The learned Chief Judicial Magistrate after registering the complaint transferred the same under section 192 of the Code to the court of the learned Judicial Magistrate named above. The allegation made in this complaint petition was under section 420 of the Indian Penal Code and 138 of the said Act. It was alleged that accused Ashok Kumar Singh who was the proprietor of M/s Vaishali Tyres, Jhumri Tilaiya; pursuant to an agreement between him and the complainant used to send the consignment of goods to the consignee without Bilty through the transport agency of the complainant. Various goods were delivered as per this arrangement in the period from 30.4.1992 to 31.1.1993. In view of the hardship of accused Ashok Kumar Singh the consignments were delivered against the post dated cheque for an amount of Rs. 3,60,995/ - vide cheque No. LKR -052912 dated 21.5.1993 drawn on United Bank of India, Jhumri Tilaiya. This amount covered the entire cost of goods delivered to this accused. Opposite party no. 2 presented this cheque dated 21.5.1993 to his Bank, namely, Punjab and Sindh Bank, Fraser Road, Patna on 21.5.1993. However, the aforesaid Bank on 25.6.1993 informed the opposite party no. 2 that the United Bank of India, Jhumri Tilaiya branch had informed it that the account of the accused was closed on 19.4.1993 itself.

(3.) THE petitioner has contended that admittedly the cheque in question was not issued by him and no demand for payment of money was made to him. No notice as required under section 138 of the Act was ever given to him. In the complaint petition also he was not named as an accused. Even in his statement on solemn affirmation opposite party no. 2 has not named him as an accused. He has also not stated that M/s Vaishali Tyres was a partnership firm of which the present petitioner was also a partner. There is no evidence to show any connivance between the present petitioner and accused Ashok Kumar Singh. The impugned order is also hit by section 142 of the said Act. On these grounds amongst others it has been contended that the impugned order be quashed.